STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-2556

)

BRUCE M. BLASKO, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 26, 1997, a formal administrative hearing was held in this case in Clearwater, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark P. Brewer, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Bruce Blasko, pro se

2759 Gulf to Bay Boulevard Lot 143 Clearwater, Florida 33759-3947

STATEMENT OF THE ISSUE

Whether the Respondent, Bruce M. Blasko, committed the offenses alleged in the Administrative Complaint and, if so, what penalty should be imposed on his certificate as a correctional officer.

PRELIMINARY STATEMENT

By Administrative Complaint (Complaint) dated July 20, 1995,

Petitioner, the Criminal Justice Standards and Training Commission, (Petitioner/Commission) charged Respondent, Bruce M. Blasko, with violating the provisions of Sections 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.0011(4) (b) and/or (c), Florida Administrative Code. The Complaint alleges that Respondent has failed to maintain the qualifications established in Section 943.13 (7), Florida Statutes, which requires that correctional officers in the State of Florida have good moral character. Specifically, it is alleged that on May 15, 1994, Respondent (1) unlawfully had in his possession a controlled substance, marijuana, and (2) on that date attempted to introduce the same into the Hendry Correctional Institution.

Respondent timely filed an Election of Rights form challenging the allegations set forth in the Complaint and requested a formal hearing. By letter dated May 27, 1997, the case was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing.

Prior to hearing, the parties stipulated to facts which were accepted and required no proof at hearing. At the formal hearing, Petitioner presented the testimony of two witnesses, Inspector Paullette C. Pomerleau, Florida Department of Corrections, and Trooper George Kantor, Florida Highway Patrol.

Respondent testified on his on behalf and called one witness, Sergeant Charles Gergel, Florida Department of Corrections.

Petitioner offered and had two exhibits admitted into evidence. Respondent offered no exhibits into evidence.

The proceeding was recorded but not transcribed. Petitioner timely filed proposed findings of fact and conclusions of law.

Respondent filed no proposed recommended order.

FINDINGS OF FACT

1. Bruce M. Blasko, Respondent, was certified by the Criminal Justice Standard and Training Commission (Commission) on October 3, 1983, and issued Corrections Certificate Number 24971.

2. At all times relevant to this proceeding, Respondent was employed as a Corrections Officer at the Hendry Correctional Institution.

3. On May 15, 1994, Respondent reported to work at the Hendry Correctional Institution. Shortly after Respondent reported for duty on that date, an unannounced inspection was conducted on the Hendry Correctional Institution grounds and staff on duty at the facility. The inspection was conducted by the Florida Department of Corrections inspectors and the Florida Highway Patrol.

4. During the inspection on May 15, 1994, the Florida Department of Corrections staff used an Ionscan, a vacuum device to detect drug residue, on Hendry Correction Institute staff. Prior to beginning the inspection, Hendry Correctional Institution staff were briefed on the Ionscan.

5. During the initial briefing of the Ionscan, Respondent appeared nervous and asked to be excused to go to the bathroom. Consistent with procedures during such an inspection, Respondent was not immediately excused from the room, but had to remain

   there until he was searched.

6. A search of Respondent disclosed that he had on his person two cigarette packs; one unopened pack and one opened pack that contained a tobacco cigarette and two marijuana cigarettes.

7. Respondent testified that he had found the two marijuana cigarettes “on the yard” of the Hendry Correctional Institute while on duty the evening of May 14, 1994. According to Respondent, he found the marijuana cigarettes near the end of his shift, was in a hurry to get off, and neglected to follow established procedures for turning in the marijuana cigarettes. Rather, Respondent contends that he put the marijuana cigarettes in his cigarette package, which he kept in his sock, and left the Hendry Correctional Facility after completing his shift. According to Respondent, he forgot the marijuana cigarettes were in the cigarette package which he had with him when he reported to work on May 15, 1994.

8. Respondent was subsequently arrested for introduction of contraband and for possession of marijuana. Respondent pleaded nolo contendere to possession of marijuana and as part of a plea deal, adjudication was withheld.

9. Marijuana is a controlled substance and is contraband. Such contraband has a serious negative impact on prison management and discipline.

10. Respondent’s introduction of the marijuana cigarettes on the premises of the Hendry Correctional Institution and his possession of the same were illegal. Furthermore, possession and introduction of such contraband violates established written

    policies and procedures of the Department of Corrections.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

12. Section 943.13, Florida Statutes (1993), establishes the minimum qualifications for certification as a law enforcement officer in Florida. Subsection (7) of that provision requires that all such officers “have good moral character as determined by a background investigation under procedures established by the commission.”

13. Section 943.1395, Florida Statutes (1993), authorizes Petitioner, the Commission, to take disciplinary action against the certificate of a correctional officer for the offenses enumerated therein. Pursuant to Section 943.1395(7), Florida Statutes (1993), the Commission is authorized to revoke, suspend, or otherwise discipline the certification of any officer who has not maintained good moral character.

14. In the Complaint, the Commission alleged in two counts that Respondent (1) unlawfully introduced marijuana cigarettes on the premises of the Hendry Correctional Institute and (2) unlawfully possessed marijuana cigarettes while on duty at the Hendry Correctional Institute. By committing such acts, the Commission contends that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes (1993). Specifically, the Commission maintains that by introducing and possessing marijuana cigarettes at the Hendry

    Correctional Institutes, Respondent has failed to maintain good moral character.

15. Rule 11B-27.0011(4), Florida Administrative Code, which implements relevant portions of Section 943.1395, Florida Statutes (1993), provides in relevant part:

    1. For the purposes of the Commission’s implementation of any of the penalties enumerated in Section 943.1395(6) or (7), Florida Statutes, a certified officer’s failure to maintain good moral character, as required in Section 943.13(7), Florida Statutes, is defined as:

       1. The perpetration by the officer of an act which would constitute a felony offense, whether criminally prosecuted or not.

       2. The perpetration by the Officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: 893.13,

          F.S. . . . .

          
          

16. Section 951.22, Florida Statutes (1993), prohibits the introduction of contraband into a jail and makes such an act a third degree felony. Furthermore, Section 893.13, Florida Statutes (1993), prohibits the possession of marijuana and is a first degree misdemeanor.

17. The Commission has the burden of proof in this proceeding and must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292, (Fla. 1987).

18. The Commission has established by clear and convincing evidence that Respondent was in possession of two marijuana cigarettes and introduced the same at the Hendry Correctional

    Institution. Respondent’s explanation that he found the

    marijuana cigarettes on the grounds of the prison does not alter this conclusion. The Commission has proven by clear and convincing evidence, and it is undisputed, that Respondent left the Hendry Correctional Institution with the marijuana cigarettes, had them in his possession during the time he was off duty, and returned to the Hendry Correctional Institution with the marijuana cigarettes.

19. By introducing the marijuana cigarettes at the Hendry Correctional Institute, Respondent violated Section 951.22(1), Florida Statutes (1993). Pursuant to Section 951.22(2), Florida Statutes (1993), a violation of that provision constitutes a third degree felony.

20. The clear and convincing evidence at hearing established that Respondent was in possession of two marijuana cigarettes, and thereby violated Section 893.13, Florida Statutes (1993). This violation by Respondent constitutes a first degree misdemeanor.

21. Pursuant to Rule 11B-27.0011(4), Florida Administrative Code, the acts committed by Respondent evidence his failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (1993). Having failed to maintain “good moral character” as prescribed by Section 943.13(7), Florida Statutes, Respondent no longer meets the criteria for retaining a law enforcement or correctional officer certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

Recommended that the Criminal Justice Standards and Training Commission enter a Final Order revoking the law enforcement certificate of Respondent, Bruce M. Blasko.

DONE AND ENTERED this 25th day of November, 1997, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1997.

COPIES FURNISHED:

Mark P. Brewer, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Bruce M. Blasko, pro se 2759 Gulf to Bay, Lot 143

Clearwater, Florida 34619-3918

Michael Ramage General Counsel

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-002556

Orders for Case No: 97-002556